Lead Opinion
We granted a writ of certiorari to the Court of Appeals in Dees v. Logan,
Dees and his wife brought suit against Logan seeking damages for injuries suffered in an automobile collisiоn. The jury awarded the Dees $130,000 for lost wages, $4,939 for reimbursement of COBRA payments, $10,000 for pain and suffering and $5,000 for loss of consortium. The Dees’ uninsured motorist carrier, State Farm Mutual Automobile Insurance Company (“State Farm”), argued that it could offset the jury’s award by amounts Dees had already received in workers’ compensation benefits ($83,200), social security disability benefits ($70,056), and a pretrial settlement with Logan’s liability insurer ($25,000). In this regard, State Farm pointed out that its UM policy expressly provided that “any amount payable . . . shall be reduced by any amount paid or payable to or for the insured: (a) under any workеrs’ compensation, disability benefits or similar law.” The trial court accepted State Farm’s argument and ordered that the Dees recover nothing from State Farm or Logan. The Dees appealed, and the Court of Appeals affirmed in part, holding that the trial court
Georgia’s uninsured motorist statute provides:
The endorsement or provisions of the policy providing the coverage required by this Code section may contain provisions which exclude any liability of the insurer for injury or destruction of property of the insured for which he has been compensated by other property or physical damage insurance.
OCGA § 33-7-11 (i). The plain meaning of this subsection is that an uninsurеd motorist carrier can setoff benefits which its insured may have received to compensate for property loss. This being so, we must conclude that the legislature did not intend to authorize an insurer to setoff benefits received for personal injury. That is because when a statute expressly mentions one of many things, the omitted things must be regarded as having been deliberately excluded. Alexander Properties Group v. Doe,
When an uninsured motorist policy provision is in conflict with the clear intent of OCGA § 33-7-11, the policy provision is unenforceable and the statute controls. Hartford Accident & Indemnity Co. v. Booker,
State Farm asserts that the 2006 amendment to OCGA§ 33-7-11 (Ga. L. 2006, p. 815) demonstrates the intent of the legislature to permit a setoff for damages related to personal injuries. We disagree. That amendment simply substituted “for bodily injury, loss of consortium or death of an insured” for “all sums which said insured shall be legally entitled to recover” in subparagraph (a) (1). Viewed in context, that amendment offers no insight into whether the legislature intended to allow uninsured motorist insurers to offset workers’ compensation benefits or other similar benefits. If the legislature did so intend, it should have amended subparagraph (i) to expressly provide for exclusions for personal injury.
We reject the notion that the legislature necessarily acquiesced in the Court of Appeals’ interpretation of OCGA § 33-7-11 and that, therefore, stare decisis requires this Court to affirm the judgment of the appеllate court. Compare Brunswick Savings & Trust Co. v. National Bank,
State Farm also posits that, inasmuch as Dees is not entitled to a double rеcovery,
In passing, we note that our holding is in accord with a majority of jurisdictions which have uninsured motorist statutes that do not expressly permit or prohibit reduction clauses and which hold that offsets for workers’ compensation benefits are impermissible. See Annot., 31 ALR5th 116.
Judgment reversed.
Notes
See Ferqueron v. State Farm &c. Ins. Co.,
See generally Carter v. Banks,
Concurrence Opinion
concurring.
I concur fully in the majority’s holding that, when damages for personal injury are awarded in a tort action аgainst an uninsured motorist, the uninsured motorist carrier cannot set off from that recovery the amount of workers’ compensation and similar benefits received by the insured. However, I write separately to further support the majority’s correct resolution of the issue.
The applicable provisions of former OCGA § 33-7-11 (a) (1) required that a motor vehicle liability policy issued in this state contain “an endorsement or provisions undertaking to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle . . . .” (Emphasis suрplied.) The code does not contain any additional provision which expressly precludes the uninsured motorist carrier from asserting the right to setoff workers’ compensation and similar benefits from the insured’s recovery of damages against the tortfeasor. However, OCGA § 33-7-11 (i) does further specify that
[t]he endorsement or provisions of the policy providing the coverage required by this Code section may contain provisions which exclude any liability of the insurer for injury or destruction of property of the insured for which he has been compensated by other property or physical damage insurance. (Emphasis supplied.)
As the majority correctly notes, this approval of a limited setoff for collateral benefits reсeived as indemnification for property damage implies the exclusion of any comparable setoff for collateral benefits received for other types of damage. See Alexander Properties Group v. Doe,
Thus, when the relevant statutory provisions are read together and harmonized, it is apparеnt that, at the times applicable to this appeal, a motor vehicle liability policy issued in Georgia was required to provide uninsured motorist coverage for any damages recoverable by the insured against the tortfeasor, except to the limited extent that the carrier сould, if it chose, exclude from coverage such property damage as had been indemnified from another source. Workers’ compensation and similar benefits are not payable to an insured as indemnification for the injury or destruction of his or her property. They are payаble based upon the physical injury suffered as the consequence of the uninsured motorist’s negligence. Therefore, such benefits cannot be the subject of a setoff, since they are within the broad coverage mandated by former OCGA § 33-7-11 (a) (1) and are not subject to the narrow exclusion authorized by OCGA § 33-7-11 (i).
This construction of the Georgia statutes is consistent with existing authority. In Dacosta v. Allstate Ins. Co.,
Tennessee law allow [ed] an insurer’s liability for uninsured motorist benefits to beoffset by any collateral benefits received by the injured person. [Cit.] . . . [However,] the Georgia uninsured motorist statute . . . does not provide for any such setoff.... (Emphasis supplied.)
Dacosta v. Allstate Ins. Co., supra at 11. The conclusion reached was that the insurer was entitled to assert the setoff, because “[t]he mere fact that the two states have different laws in this regard does not mean that the Tennessee law cannot be enforced. [Cits.]” Dacosta v. Allstate Ins. Co., supra. Thus, Dacosta recognized that Georgia law was “different” because it did not provide for a setoff of workers’ compensation benefits.
In this case, the Court of Appeals reached the contrary conclusion, based upon several of its decisions decided after Dacosta which recоgnized that a setoff for workers’ compensation and similar benefits is permissible. See Dees v. Logan,
Where a statute has, by a long series of decisions, received a judicial construction in which the General Assembly has acquiesced and thereby given its implicit legislative approval, the courts should not disturb that settled construction. [Cits.]
Abernathy v. City of Albany,
As the majority notes, the General Assembly did amend OCGA § 33-7-11 (a) (1) in 2006, so as to eliminate the former requirement that uninsured motorist coverage be provided for “all sums” recoverable as damages by the insured against the tortfeasor. Under the current version of the statute, the policy must contain
an endorsement or provisions undertaking tо pay the insured damages for bodily injury, loss of consortium or death of an insured or for injury to or destruction of property of an insured under the named insured’s policy sustained from the owner or operator of an uninsured motor vehicle .... (Emphasis supplied.)
Ga. L. 2006, pp. 815, 816, § 1. However, that amendment to OCGA § 33-7-11 (a) (1) was not in effect at the times relevant to this appeal and is, therefore, not applicable here. Moreover, as the majority correctly notes, even if it had been, it does not express the legislative intent to permit an uninsured motorist carrier to offset workers’ compensation and similar benefits against the damages awarded to thе insured for personal injuries. Instead, the 2006 enactment is clearly the General Assembly’s response to Gordon v. Atlanta Cas. Co.,
require [d] an insurer to pay damages for the death of a person who was not covered under the policy. . . . The language of the [former] statute is plain and it is not illogical. It clearly states that the insurer is to pay “all sums which (the) insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.” [Cit.] All means all, every single one. Since the insured in this case is entitled to recover damages for the death of his son against the owner or driver of the uninsured vehicle, he is entitled to recover those damages against his insurer. (Emphasis in original.)
Obviating that holding in Gordon, by limiting uninsured motorist coverage to such physical and property damage as was suffered by one who is “an insured” under the policy, is not equivalent to an authorization fоr a setoff of workers’ compensation and comparable benefits. Since the General Assembly has not amended OCGA § 33-7-11 (a) (1) or any other uninsured motorist statute in any material respect, the question thus becomes whether the post-Dacosta decisions relied upon by the Court of Appeals are binding authority for construing those provisions as authorizing such a setoff.
The earliest post-Dacosta decision cited by the Court of Appeals is Northbrook Property & Cas. Ins. Co. v. Merchant,
The Court of Appeals also cited Ferqueron v. State Farm Mut. Auto. Ins. Co.,
Accordingly, the majority correctly overrules such cases as failed to construe former subsection (a) (1) of OCGA § 33-7-11 together with subsection (i) of the same provision and which, consequently, erroneously held that a setoff of workers’ compensation and similar benefits is not precluded by statute. Even with legislative acquiescence, a judiсial construction predicated upon only part of the relevant statutory provision is not binding authority for the interpretation of all elements of the applicable statute. The unfortunate failure to follow Dacosta which commenced in Northbrook Property & Cas. Ins. Co. has now been rectified by today’s opinion, which reestablishes that, regardless of the lаw in other states such as Tennessee, OCGA§ 33-7-11, when properly construed in its entirety, does not allow a policy to provide for any setoff of collateral benefits that the insured has received for personal injuries.